"[I]f a taxpayer, acting on ingenious advice succeeds in avoiding the payment of tax which other taxpayers, who do not have access to such ingenious advice, pay . . . and in the result Fiscus loses tax, it is not customary for the courts to shed any tears on behalf of it; the taxpayer has done what he was entitled to do, and that is the end of the matter. What is sauce for the goose is sauce for the gander" "If the person sought to be taxed comes within the letter of the letter of the law he must be taxed however hard the hardship may appear to the judicial mind to be. On the other hand if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, [he] is free however apparently within the law the case might appear to be" In any tax planning strategy, the best option is to receive an amount [that] does not attract any tax at all "[H]onesty in regard to tax matters is often something different and ... less than the rest of our lives”

Estate planning has been described as the process whereby a person acquires property, ensuring that he derives maximum benefits from his ownership and the enjoyment thereof during his lifetime, and that as much as possible and in the most economical manner with the minimum erosion thereof shall devolve upon his heirs when he dies. ( 1) The objective of estate planning is thus, in essence, the disposal of property during the estate owner's ('the planner') lifetime or upon his death.

As the burden borne by the South African taxpayer seems to increase yearly, the prudent taxpayer must embrace the various deductions available to him or her in terms of the Act . In order to do so the taxpayer must understand the ambit of each deduction so that he or she may plan accordingly. A deduction that has for many years granted relief to the weary taxpayer is that contained in Section 1 l(d).

My thesis is on tax avoidance provisions in South Africa. I want to present an overview of tax avoidance in South Africa but I will concentrate more on section 103(1) which is the general anti - tax avoidance provision in South Africa.I will then proceed to look at the artificial tax avoidance, and a comparative analysis between United Kingdom (UK) and South Africa on the substance over form approach as a new approach to tax avoidance. Much has been said on tax avoidance and it is an area which has generated much interest and curiosity to the society at large.

Income tax has been and will continue to be the subject of much emotion, in some instances the distinction between tax evasion and tax avoidance being blurred beyond comprehension. MacDonald JP once vented his judicial spleen and hurled his person, with respect rather unceremoniously, armed with gown and gavel (perhaps much to the relief of the taxpayer's counsel), into a hysteria of emotional outburst as follows: [f]he avoidance of tax is an evil. Not only does it mean that a taxpayer escapes the obligation of making his proper contribution to the fiscus, but the effect must necessarily be to cast an additional burden on taxpayers who, imbued with a greater sense of civic responsibility, make no attempt to escape or, lacking the financial means to obtain the advice and set up the necessary tax-avoidance machinery, fail to do so. Moreover, the nefarious practice of tax avoidance arms , opponents of our capitalistic society with potent arguments that it is only the rich, the astute and the ingenious who prosper in it and that 'good citizens' will always .fare -badly. While undoubtedly the short term effects of the practice are serious, the long term effects could be even more so.

Tax avoidance may be an inevitable consequence of taxation; however, it remains a great drain on the fiscus. There are many ways in which the Commissioner may attack avoidance arrangements in order to lessen the drain on the fiscus. One manner in which the Commissioner may attack avoidance arrangements is through the doctrine of simulated transactions. Given that the simulated transactions doctrine is ordinarily a contract law doctrine and not strictly speaking a tax law mechanism one might wonder how this area of law might develop into an antiavoidance mechanism. This contribution sought to understand how the doctrine may develop as an anti-avoidance mechanism through an analysis of the development of the case law in regards to the development of the doctrine in order to ascertain how it has developed into a common-law anti-avoidance rule. In this regard selected cases were discussed which highlighted firstly the genesis of the simulated transactions doctrine in our law (Chapter 2) and selected cases were discussed that highlighted the simulated transactions doctrine's development and use as an anti-avoidance mechanism (Chapter 3) and finally the courts acceptance and treatment of this development and how this development was discussed in the literature was also discussed (Chapter 4) It was concluded that whilst the doctrine can be developed quite extensively as an anti-avoidance mechanism the courts are unlikely to develop same into a broad common-law General Anti-Avoidance Rule.

This thesis investigates the following objectives: first, it analyses trends in share option compensation for NEDs during the pre–King III period (before they were stopped). The idea is to determine whether the decision to stop them was triggered by a significant increase in their use. The trend analysis is extended to observe changes in the use of share options for NEDs over the full sample period. The intention of this sub–objective is to measure the extent of compliance to King III’s requirement to stop the use of share option compensation for NEDs. Second, the study exploits the natural experiment, presented by King III’s requirement to stop the use of share option compensation for NEDs, to investigate the impact of share option compensation for NEDs on monitoring executives. In addition, the study investigates how institutional and blockholder ownership affect the relationship between share option compensation for NEDs and monitoring (to see whether they are substitutes). Both institutional and blockholder owners consist of heterogeneous categories with different monitoring incentives; hence, a further analysis examines the moderating impact of these different categories of stakeholders. To measure the level of monitoring, the study focuses on two of the biggest agency problems in South Africa: design of CEO compensation and levels of earnings management. The study is based on a sample of 110 non–financial companies (55 in the treatment group and 55 in the control group) listed on the Johannesburg Stock Exchange (JSE), South Africa, over the period 2002–2016. The bulk of the data used was hand–collected from annual reports, the rest was sourced from financial databases such as Bloomberg, Iress and DataStream. The difference– in–difference regression analysis is the main methodology used but for comparison purposes, the study also applies the normal Ordinary Least Squares (OLS) regression and fixed effects model. To control for the endogeneity problem, the study is based on a natural experiment, which is dubbed the ‘gold standard’ for addressing endogeneity problems. Addressing the endogeneity problem is key to satisfactorily settling the debate on the effectiveness of equity–based compensation in mitigating secondary agency problems. The results of the trend analysis show that the growth in share option compensation for NEDs was not statistically significant during the pre–King III period. These results rule out the possibility that King III’s recommendation to stop the use of share option compensation for NEDs was driven by an explosion in their use. As expected, after the introduction of King III, the use of share options declined significantly – an indication that companies largely complied with the requirement to stop the use of share options as compensation for NEDs. However, not all companies are compliant; this is not surprising, as King III was based on the ‘apply or explain’ approach. Regarding the impact of share option compensation on monitoring, the results consistently show that removing share option compensation for NEDs does not weaken monitoring; it either improves monitoring, or it has no effect. Based on these findings, it is not worthwhile, for shareholders, to use share option compensation for NEDs. They come at a cost, they dilute the shareholding structure yet removing them does not weaken monitoring. Overall, the results support King III’s recommendation to stop the use of share option compensation for NEDs. The results also show that the presence of institutional and blockholder ownership does not improve monitoring after the removal of share option compensation. Hence, neither of these two stakeholders are a substitute monitoring mechanism for share option compensation for NEDs. This is inconsistent with the substitution-monitoring hypothesis. These findings persist, even after a sub–sample analysis of the two categories of institutional ownership (monitoring and non– monitoring institutional owners). A further analysis of different categories of blockholder ownership shows that family, pension and foreign blockholder are not a substitute monitoring mechanism for NEDs share option compensation. But the results for government blockholders contradict this; they are a substitute for share option compensation when analysing real–activities manipulation. However, for the rest of the settings they are not a substitute monitoring mechanism. This confirms the view that different blockholders have different incentives to monitor management, which affects organisational outcomes. The study makes the following contributions: (i) It contributes to the literature by addressing the endogeneity problem using a natural experiment. (ii) The study focuses on a unique institutional context, largely ignored by prior studies on this subject. (iii) The study contributes to the crafting of future corporate governance principles in South Africa and the rest of world, specifically on the design of incentive compensation for NEDs. (iv) By investigating the interaction effects of institutional/blockholder ownership and their different categories, the study provides evidence for the substitution-monitoring hypothesis in South Africa. (v) On the use of share option compensation for NEDs, this study contributes to the literature by showing its impact on mitigating agency problems specifically related to the design of CEO pay incentives.

Includes bibliographical references / This paper examines the role of a taxpayer’s intention in the way certain transactions will be taxed. The paper will examine the weight accorded to a taxpayer’s stated intention in different situations (i.e. in what situations/ transactions will a taxpayer’s intention have comparatively little weight when compared to the objective facts of the case?) The paper first ascertains the meaning of intention/purpose/motive in terms of the Income Tax Act, 58 of 1962 as amended, (hereafter referred to as “the Act”). The question is whether these words are synonymous or have separate and discrete meanings. The paper then looks at the typical areas of difficulty associated with a taxpayer’s intention. Share disposals are one example discussed, as it is often difficult to determine whether these disposals are of a capital or revenue nature. The weight accorded to a taxpayer’s intention in schemes involving tax avoidance is also discussed. Case law surrounding section 20A and section 80A-S80L of the Act are reviewed to ascertain how a taxpayer’s intention is dealt with in these sections

Includes bibliographical references. / A contract requires two or more people to come to an agreement with regards to the requirements of such a contract with the intention of following the practice of whatever is set out in the contract, the main intention being to deliver a performance by both parties. When two parties sign a contract they are thus agreeing to stick to the terms of the contract that they are signing, as it becomes effective upon signature. The contract is then rendered to be in place and binding from that moment thereon. This implies that any condition that is not complied with in the contract that might take place after signing the contract will have penalty imputed on the guilty party as per stipulated in the contract. The contract must also provide the detailed measures that will be taken in the case of either party failing to honour the necessary conditions that were stated at the inception of the contract. Failure to adhere to the conditions in the contract is called breaching the terms of the contract and thus the company found guilty of breaching the contract will be liable to pay the penalties agreed to by the parties that have entered into that contract. If a company or individual signs a contract that will provide that particular company or individual with benefits for a certain period, but for whatever reasons the contract gets cancelled, it makes sense that the company or individual should receive compensation for the damages of the loss of the income that it would have received had the contract run its full course as intended without any party repudiating the specific contract in question. This brings me to the concept of damages and compensation.

Includes bibliographical references / Eisenberg de Saude inter alia assists and represents foreigners, corporates, non-resident companies and returning South Africans in their South African immigration affairs. Questions relating tax liability for the in respect of the aforementioned often arise during consultations/meetings/briefings. For this reason, I have decided to dedicate my research proposal to the aforementioned with the hope that it will equip me with sufficient knowledge to properly address and assist the foreign clients of Eisenberg de Saude in their tax uncertainties without getting a worrying feeling in the pit of my stomach. In addition to the above, I hope that my research proposal could and would be used as a guide by all relevant and interested persons in alleviating the uncertainties surrounding their tax liabilities and perhaps managing their affairs in a tax efficient manner and I hope that the material mentioned below effectively and clearly imparts what I have learned during preparing and drafting this proposal.